H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.

Published on:April 10, 2013

Wiretapping Questions Arise In Mitch McConnell “Dust Up” – Would This Be A Crime In Colorado?

The question of whether someone illegally bugged Senator Mitch McConnell’s office raises serious questions that arise from a recording that recently was obtained by the news organization Mother Jones.

The nature of the recording is not at issue in this blog entry – that would be the political side of the matter. What is at issue here – is the legality of an individual – NOT a direct participant in a meeting – and not present at the meeting – surreptitiously recording the meeting.

While it is unclear as to who made the recording – or why – or how Mother Jones obtained the recording – what is clear is that the FBI has been tasked with determining – if they can -the mode and method behind the making of the audio message… and hopefully identifying the who behind the recording.

Of course McConnell sees the creation of the recording as a “left-wing, Nixon-esque plot” against the GOP leader… as usual – trying hard to play the victim in the matter. McConnell denies even the possibility that anyone from his organization could have planted the recording device.

Mother Jones – in turn – also denies any role in making the tape – but has not provided the origin of the source of the tape they placed on their websiteUnder What Circumstances Would This Be A Violation of the Wiretapping Laws?

Two distinct laws are implicated in the investigation.

The federal wiretapping law reads as follows:

“It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”

The Kentucky law – applies because of the location of the meeting:

526.030 Installing eavesdropping device.

(1) A person is guilty of installing an eavesdropping device when he intentionally installs or places such a device in any place with the knowledge that it is to be used for eavesdropping.

While this case is under investigation – it might be helpful to republish here – the last word on wiretapping in my home state of Colorado – (and here is another link to another article that discusses the law in this area).

The question that will arise in the FBI inquiry is whether any party to the conversation consented to its recording. Kentucky – like Colorado – is a “one-party consent” state: if any party consents to the recording, it’s not illegal.

Federal law is nearly identical to Kentucky law. If the person who made the recording was one of the participants at the political meeting – the recording is also not illegal under federal law. Even if a bug was planted in the meeting space – if even ONE PERSON in the room knew that it was planted and was recording the conversation it passes federal muster… because at least that person “consented” to the recording…

The Colorado Crime of Wiretapping and eavesdropping devices prohibited 18-9-302

The first offense of buying, selling, or knowingly having in one’s possession any device used for wiretapping or eavesdropping, when committed with the intent to unlawfully use such device, or knowingly aiding another person in unlawfully manufacturing, buying, selling, or possessing such a device, is a class 2 misdemeanor. 18-9-302
A second or subsequent offense of possessing devices used for wiretapping or eavesdropping is a class 5 felony. 18-9-302
Here is the more relevant law as regards this case.

The Colorado Crime of Wiretapping prohibited 18-9-303 (2)

(1) Any person not a sender or intended receiver of a telephone or telegraph communication commits wiretapping if he:

(a) Knowingly overhears, reads, takes, copies, or records a telephone, telegraph, or electronic communication without the consent of either a sender or a receiver thereof or attempts to do so; or
(b) Intentionally overhears, reads, takes, copies, or records a telephone, telegraph, or electronic communication for the purpose of committing or aiding or abetting the commission of an unlawful act; or
(c) Knowingly uses for any purpose or discloses to any person the contents of any such communication, or attempts to do so, while knowing or having reason to know the information was obtained in violation of this section; or
(d) Knowingly taps or makes any connection with any telephone or telegraph line, wire, cable, or instrument belonging to another or with any electronic, mechanical, or other device belonging to another or installs any device whether connected or not which permits the interception of messages; or
(f) Knowingly uses any apparatus to unlawfully do, or cause to be done, any act prohibited by this section or aids, authorizes, agrees with, employs, permits, or intentionally conspires with any person to violate the provisions of this section.

Wiretapping that does not involve a cordless telephone is a class 6 felony. 18-9-303 (2)

The Colorado Crime of Eavesdropping prohibited 18-9-304 (2)

Any person not visibly present during a conversation or discussion commits the class 1 misdemeanor offense of eavesdropping if he or she:

• knowingly overhears or records (or attempts to do so) the conversation without the consent of at least one of the principal parties;

• intentionally overhears or records the conversation for the purpose of committing, aiding, or abetting the commission of an unlawful act;

• knowingly uses or discloses (or attempts to do so) the contents of the conversation while knowing or having reason to know that the information was obtained through eavesdropping; or
• knowingly aiding, authorizing, agreeing with, employing, permitting, or intentionally conspiring with any person to violate the provisions of the eavesdropping statute. 18-9-304 (2)